Bias Against Muslims as a Factor in Litigation

Since 9/11, there has been an awareness among lawyers of an anti-Muslim bias and prejudice that potentially affects the fairness of trials. We are now learning this goes beyond Muslims and extends to Arabs. According to a 2015 Gallup poll, 43% of all Americans admit to holding prejudice against Muslims and 39% express an unfavorable view of Arabs. Another survey states that 47% believe Islam and American values are in conflict. There is some research to the effect that prejudice against Arab Americans is greater than that held against Hispanic Americans, Asian Americans or African Americans.

Considering the deluge of overheated political discourse of today about immigration and terrorism, I suspect the degree of bias is greater today than ever before and growing. It is also significant that these numbers reflect explicit bias and prejudice that is self-reported. Most people are reluctant to admit publically that they harbor bias or prejudice and studies prove that many people are unaware that they are biased and prejudiced.

Our judicial system cannot function properly if race, religion, ethnicity, social status, or nationality play an unspoken role in the decision making process. Nevertheless, one would have to be very naive to believe that these issues don=t affect the quality of justice in cases involving litigants and witnesses who are Muslin, Arabs, or for that matter any minority.

What can be done short of the unrealistic goal of changing hearts and minds on a wholesale basis?

Insofar as I can see, there is nothing that can be done other than for judges and lawyers to address this issue head-on during jury selection. By this I mean that lawyers need to thoroughly examine potential jurors regarding anti-Muslim, anti-Arab bias, and trial judges need to allow lawyers plenty of time and latitude in doing so. Due to the fact that people don’t want to publically admit racial, ethnic or religious bias, some of this questioning may have to be done in a private conference between the judge, the lawyers and the potential juror at the bench.  Instructions from a judge to jurors to not let bias and prejudice affect their verdict are worthless. As the old saying goes, telling jurors to disregard something is like throwing a skunk in the jury box and telling them not to smell it. It just won’t and can’t work.


Photo Credit: Ross Caines